HKSAR v. ATIENZA RICHARD MONTENEGRO

CACC 38/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38 OF 2016

(ON APPEAL FROM DCCC NO. 1070 OF 2015)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1. By a Notice of Renewal, filed with the Court on 30 May 2016, the applicant seeks leave to appeal against the sentences of imprisonment imposed on him by Deputy District Judge Kathie Cheung on 27 January 2016, following his conviction on his pleas of guilty to three charges of theft (Charges 1 to 3), contrary to section 9 of the Theft Ordinance, Cap. 210 (“the Ordinance”), eight charges of obtaining property by deception (Charges 4 to 6 and 8 to 12), and one charge of attempted obtaining by deception (Charge 7), contrary to the same provisions and section 159G of the Crimes Ordinance, Cap. 200. The offences were committed on and between 12 and 15 November 2014. On 17 May 2016, Macrae JA refused the applicant leave to appeal against sentence. At the hearing we reserved our judgment, which we said we would hand down in due course. That, we do now.

THE SENTENCES

2.  THE JUDGE IMPOSED THE FOLLOWING SENTENCES:

Charge 1 ― 6 months’ imprisonment;

Charges 2 and 3 ― 7 months’ imprisonment on each charge; and

Charges 4 to 12 ― 21 months’ imprisonment on each charge.

The judge ordered that 3 months of the sentence of imprisonment imposed in respect of Charge 1 was to be served consecutively to the sentences of imprisonment imposed in respect of all the other charges.  Accordingly, the total sentence imposed on the applicant was 2 years’ imprisonment.

The facts

Charge 1

3. Mr McGough was the holder of an HSBC credit card, which he had last used on 12 November 2014.  At around 1 p.m. on 15 November 2014, he was informed by HSBC that suspicious transactions had been made with the credit card at various locations that day.  He had no knowledge of these unauthorized transactions, and discovered that the credit card was missing from his wallet.

4. Enquiries made by the police, following Mr McGough’s report to them over the loss of his credit card, resulted in the identification of the applicant’s fingerprint on one of the sales slips used in one of the unauthorised transactions.  On 13 October 2015, the applicant was arrested as he re-entered Hong Kong.

5. On 15 October 2015, in a video recorded interview conducted under caution the applicant admitted to police officers that having engaged in a conversation with Mr McGough in a park he had seen him drop the credit card.  Having left the park separately, the applicant returned to the park later and picked the card up.

Charges 2 and 3

6. On 15 November 2014, the applicant used the credit card to make two online transactions of $100 each (Charges 2 and 3), without Mr McGough’s knowledge or consent.

Charges 4 - 6 and 8 - 12

7. On and between 10:29 a.m. and 12:33 p.m. on 15 November 2014 the applicant used the credit card in various shops in Wanchai to obtain the property the subject of Charges 4 to 6 and 8 to 12, by misrepresenting himself to be Mr McGough :

Charge 4 ― at around 10:29 a.m. the applicant obtained a pair of shoes for $1,199;

Charge 5 ― at around 10:47 a.m. the applicant obtained two bottles of perfume for $1,688;

Charge 6 ― at around 10:55 a.m. the applicant obtained a wrist watch for $2,412;

Charge 8 ― at around 11:28 a.m. the applicant obtained two suitcases for $2,878;

Charge 9 ― at around 11:57 a.m. the applicant obtained a ‘Play Station 4’ console for $4,078.80;

Charge 10 ― at around 12:18 p.m. the applicant obtained some cosmetics for $2,856.40;

Charge 11 ― at around 12:40 p.m. the applicant obtained a wrist watch for $9,000; and

Charge 12 ― at around 12:53 p.m. the applicant obtained three wrist watches for $4,260.

Charge 7

8. At around 11:17 a.m. on 15 November 2014, the applicant attempted unsuccessfully to use the credit card to obtain a mobile telephone for $2,900.  However, realising that the applicant was not the cardholder the salesperson refused to execute the transaction.

9. The total monetary amount debited to the credit card in its use for the 11 successful transactions was $28,572.  The watch obtained in the transaction the subject of Charge 11, for which $9,000 was debited to the credit card, was recovered from the applicant’s person when he was arrested on 13 October 2015.

Reasons for sentence

10. In her reasons for sentence the judge said “Credit card offences are serious and must be deterred.”  She went on to refer to the judgment of this court relevant to sentencing in cases concerning the fraudulent use of credit cards:

“ In R v Chan Sui To and anor [1996] 2 HKCLR 128, the Court of Appeal laid down the various factors to be considered in sentencing this type of offence, which included the size and planning of the operation, whether there is any international dimension and the role played by the defendant. In HKSAR v Tu I Lang, CACC 464/2006, the Court of Appeal stated that where the facts of the offence point to a small unsophisticated operation involving only one or a few forged cards uncomplicated by other evidence materially linking the offence to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate (see para 10 of judgment). In HKSAR v Lam See Chung, Stephen,[1] the Court of Appeal has said those sentencing principle in consideration are equally applicable to credit card fraud in which genuine cards are used.”

11. Of the circumstances of the commission of the offences by the applicant, the judge said:

“ In this case, one genuine credit card was involved and used on 11 occasions without any marked degree of planning or organization. Further, there is lack of international element. The total value of goods obtained is not high.”

Starting points for sentence

12. Having noted that the applicant had no previous criminal convictions for an offence of dishonesty, the judge stipulated the starting points to be taken for sentence.  Having described the theft the subject of Charge 1 as theft by finding, the judge stipulated a starting point for sentence of 9 months’ imprisonment.  For Charges 2 and 3 she stipulated a starting point of 15 months’ imprisonment.  For Charges 4 to 12, she stipulated a starting point of 3 years’ imprisonment.

Discount

13. For the applicant’s pleas of guilty, the judge discounted sentence by one-third from that taken as the starting point.

Restitution

14. Having noted that the applicant had paid $10,000 into court as restitution to those that had lost as a result of his conduct, the judge said that the applicant was entitled to a discount.  In doing so, she referred to the judgments of this Court in HKSAR v Leung Shuk Man [2] and HKSAR v Cheung Suet Ting [3].  In the result, the judge determined to afford the applicant a further discountof 3 months’ imprisonment from the resulting discounted sentences to be imposed in Charges 2 to 12.  However, she declined to afford the applicant any further discount to reflect his promise to return one of the watches and a suitcase he had obtained by the use of the credit card.  She noted that as yet the promise had not been fulfilled.

Sentence

15. In the result, the judge sentenced the applicant as follows:

Charge 1 ― 6 months’ imprisonment;

Charges 2 and 3 ― 7 months’ imprisonment; and

Charges 4 to 12 ― 21 months’ imprisonment.

Totality

16. Having regard to the totality principle, the judge said “I consider a total sentence of two years is sufficient to reflect the total criminality of the defendants.”  Accordingly, she ordered that 3 months’ imprisonment of the sentence imposed on the applicant for Charge 1 was to be served consecutively to all other charges.

Grounds of appeal against sentence

17. At the hearing the applicant invited the Court to take into account the fact that further payments had been made by way of restitution to HSBC, namely the payment on 19 August 2016 of $5,000 and the return of one of the suitcases obtained by the applicant and the further payment to HSBC on 1 September of $2,572.20.

18. Finally, the applicant sought a reduction in his sentence to reflect the fact “because I am not staying in regular or normal prison.  Because of my gender I cannot associate in normal prison.”  That was a reference to the fact that he was a transgender person.  The applicant is and has been detained at Siu Lam Psychiatric Centre.  In his oral submissions, the applicant acknowledged that he was detained there for his own protection from fellow prisoners.  He said that he come to terms with the circumstances of isolation and had no complaint.

The respondent submissions

19. Ms Winnie Mok acknowledged that restitution had been made on behalf of the applicant as he had claimed.  She said that the suitcase had been used as was evident from scratch marks to its exterior and from wear and tear to the wheels.  She accepted that the applicant was entitled to a further discount to reflect the further restitution of an amount of $7,572.20, although she submitted that the return of the suitcase was of little value given the fact that it was now a used suitcase.  Ms Mok submitted that the starting point of sentence of 9 months’ imprisonment for Charge 1, theft by finding, was entirely appropriate given that the theft was of a genuine credit card.

20. Next, she suggested that the judge’s stipulation of starting points of 3 years’ imprisonment for charges in respect of the use of a credit card to obtain property by deception resonated with the judgment of this Court in HKSAR v Tu I Lang, to which the judge had made reference.  There, this Court approved of a starting point for sentence of 3 years’ imprisonment or less in circumstances where the offence involved “a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation.”  Also, she invited the Court to note that in its judgment in HKSAR v Lam See Chung, Stephen this Court had observed “the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather ‘it is the potential for losses which is the most important consideration.’ ”  In addition, the court said that the sentencing principles are equally applicable to the use of genuine credit cards in offences.  In those circumstances, she submitted that the starting point of 3 years’ imprisonment taken by the judge was consistent with the judgments of this Court and entirely appropriate.

21. Finally, she submitted that, having regard to the principle of totality of sentence, the judge was entitled to order that three months of the sentence of imprisonment imposed in respect of Charge 1 be served consecutively to the other sentences of imprisonment.

A consideration of the submissions

22. We are satisfied that the judge approached sentence in an entirely appropriate way, correctly identifying the starting points appropriate for the different offences committed by the applicant.  Similarly, having correctly afforded the applicant a one-third discount for his pleas of guilty, the discount of 3 months’ imprisonment in respect of the offences of obtaining and attempting to obtain property by deception, which she afforded the applicant from the resulting sentences of imprisonment, was entirely appropriate.  Finally, we are satisfied that the overall sentence of 2 years’ imprisonment, which resulted from her order that three months of the sentence of imprisonment imposed in respect of Charge 1 be served consecutively to the other sentences of imprisonment imposed in respect of the other charges, did not result in a sentence which was manifestly excessive.

23. Clearly, there are additional factors relevant to mitigation of sentence that are before this Court that were not before the sentencing Judge or the single judge.  We are satisfied that the applicant is entitled to a further discount for the additional restitution made since sentence was passed.  Ms Mok was correct to acknowledge that to be the case.  The discount afforded by the judge, to reflect the level of restitution made at the time of sentencing, was generous in respect of Charges 2 and 3.  In our judgment, the appropriate additional discount is one of 2 months’ imprisonment, which is to be afforded to the applicant in respect of Charges 4 to 12.

24. Finally, although having raised the issue of his detention in Siu Lam Psychiatric Centre as a factor relevant to a reduction sentence, the applicant effectively withdrew that submission, acknowledging that ultimately he had no complaint.  He was correct to do so.  There is no issue but that the applicant was detained there for his own protection and well-being.

Conclusion

25. For the reasons we have given, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quash the sentences of 21 months’ imprisonment imposed on the applicant in respect of Charges 4 to 12 and in their place we impose sentences of 19 months’ imprisonment.  We make no other orders.  Accordingly, the total sentence to which the applicant is now subject is 22 months’ imprisonment.

[1] HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 542.

[2] HKSAR v Leung Shuk Man [2002] 3 HKC 424.

[3] HKSAR v Cheung Suet Ting [2010] 6 HKC 249.